Speaking with an attorney before the breathalyzer test
You’re just been arrested for a DUI. The police officer takes you back to the station and asks if you want to take a breathalyzer test. The officer hands you a form and starts reading to you your rights with regards to taking or refusing to take the breathalyzer test.
You don’t know what to do, and don’t understand your rights. So, you ask if you can speak with an attorney before deciding to take the breathalyzer test.
Minutes later, the officer returns and asks if you are going to take the breathalyzer. You haven’t been able to reach an attorney. The police officer decides that you have refused to take the breathalyzer and marks you down as a refusal.
Refusing to take the breathalyzer
The next day, you meet with a DUI attorney who explains that by refusing the breathalyzer test your license is going to be suspended for 270 days, or you can put the interlock on your car for one year!
The attorney also suggests that you request an MVA hearing and challenge the police officer’s decision to mark you down as a refusal.
At a MVA hearing, the MVA bears the burden of proving you refused to take the breathalyzer test.
Maryland law recognizes the right of a drunk driver to consult with an attorney to decide whether or not to submit to a breathalyzer test. The right exists so long as the consultation does not interfere with the State’s effort to timely obtain the breath test results.
The courts have also held that the request to consult with an attorney is not a refusal when the police officer does not provide the drunk driver with a sufficient opportunity to contact counsel.
Bottom line: if you don’t understand your MVA rights after a DUI arrest, then ask to speak with an attorney. Whether or not, you are given sufficient time will be determined at your MVA hearing.
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Albers & Associates is a member of the National College for DUI Defense. Howard County DWI Lawyer Ross W. Albers was selected by Super Lawyers as a Rising Star in Criminal Defense: DUI.
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